THE ROBERT'S SUPREME COURT AND OBAMACARE PART 2

Winston Churchill, famously said, that you can trust America to do the right thing - after they have tried everything else! After almost 70 years of Presidential attempts, including Roosevelt, Truman and Nixon, to reform health care, the Obama Affordable Health Care Act is, finally, a reality.

The Founding Fathers in their "naive" wisdom left the final decision making, on what was to be "constitutional" or not, to 9 individuals, appointed for life. They were to arbitrate the rules as to the way the country was to be run. While, these venerable well intentioned patricians, could not have envisioned PACS and the like, they were ultimately relying on the conscience and responsibility of individuals, given this single honor, to make "the right calls".

JAY H. Ell expected this Health Care decision as he could not believe that a Chief Justice, who has the responsibility of the Court's legacy, would allow this law to be rescinded. (Blog The Robert's Supreme Court and Obamacare). The only sadness is that Roberts could not convince any of the other Conservative "wise" men to see, what was happening in an historical context. It was left to him alone.

EXPECTATIONS AND RESPONSE.

In the days leading up to the decision you could not find a pundit, commentator or journalist who predicted this outcome. Jeffrey Toobin, the CNN legal analyst had written off Obama's case as a "train wreck". Bill O'Reilly the Fox talk show host had stated that there was no way on earth that the individual mandate would be declared constitutional. Very few, if anyone were prepared for this outcome.

 The Republican response to the Robert's Supreme Court decision was vitriolic. Their media leader Rush Limbaugh implied that Roberts was a Judas and berated "that idiot" Bush who appointed him. The Republican leader of the House maintained that it may be constitutional but it was wrong. The Republican leader of the Senate said that the Court had endorsed a solution to a disease that was worse than the problem. The Republican Presidential candidate, Romney, who introduced this exact same program in Massachusetts, capsulated the Republican opposition to the decision, "On the first day of his Presidency he would move to reverse Obamacare". 

The Democratic response was stunned shock. Then unashamed jubilation followed. Obama had a host of responses prepared and to his joy he could dust off his "victory" speech -  He did not do this for political reasons he did it because it was right. It was time to move on. This was good for all of America, ( not to mention his goodself who had achieved what everyone else has been trying to do for generations).

 

WHY

The American Supreme Court has the potential for disaster - especially in this day and age of political polarization. The Judges are political appointees who are appointed for life. (Although in the case of Scalia it seems forever!). The last 4 Chief Justices have all been appointed by Republicans Presidents.

 

Yet, other than for the past two Rehnquest decades, the Court has had a strong societal bent. Even during Rehnquest's reign there was only one short period when they went totally "political". This after Sandra Day O' Connor had resigned. (In her days there were two swing votes hers and Kennedy.) Her departure gave us the Bush v Gore decision which had ziltch constitutional support. (The Court refused to allow a recount in Florida reversing a decision of the Florida Supreme Court in an area which was totally under State control. However, as Justice Scalia says every time he is questioned about it, "We were the laughing stock of the world with this hiatus. It is time to move on and forget about it".)

 

REPUBLICAN CHIEF JUSTICES.

 

In 1953 Eisenhower appointed Earl Warren as Chief Justice. He had stellar Republican credentials.  He had been Dewey's Vice Presidential running mate in the 1948 election when Truman beat Dewey against all odds. He had been Republican Governor of California 3 times. He was considered a true blue Conservative. He declared the American Japanese a threat during World 11 and was a mover of having them interned. (A decision he subsequently deeply regretted).

 

In no time at all he set about revoltionizing American Society. Brown v Board of Education was the beginning of the end of segregated schools. Warren worked night and day to get a unanimous decision. The mantra that separate facilities were inherently unequal was born and this began the unraveling of segregation in the USA. Several other judgments seperating State and Church followed such as no school prayers. Civil rights and due process were two other areas he advanced. No wonder Eisenhower maintained that appointing Warren as Chief Justice was "The biggest damn fool decision I ever made".

 

WARREN E BURGER 1969 

 

Warren Burger was appointed by Richard Nixon in 1969. He was thought to be a strict constructionist and had given speeches on the subject. He had criticized Earl Warren. Yet by the 70's it was more than evident that he would expand on Warren's liberal legacy. Rulings on abortion, school segregation, capitol punishment and Church and State seperation emanated from his bench.

 

WILLIAM REHNQUEST  1986

 

Not only was Rehnquest the longest serving Chief Justice, serving in that capacity until 2005, he had been on the Supreme Court since 1972 as an Associate Justice. Ironically, he is best known for his minority opinions in the Burger Court opposing most of the Progressive legislation. His association with the Highest Court goes back even further. He was a clerk to Justice Jackson in 1952 - 1953 and was said to have drafted an opinion against the Brown v Board of Education majority opinion. He denied this in the 1986 Senate hearings on his appointment as Chief Justice.

He was legal advisor to Barry Goldwater in his 1964 presidential bid. Thus his Conservative credentials were impeccable.

 

While he was a strict Constructionist and the Associate Judges appointed to his Court became more and more conservative, most commentators believe that he made little impact on the existing social order as defined by his predecessors. He is most famous for the Bush v Gore decision and for better or worse that will be his legacy. As his term progressed the court became more and politically polarized. This particularly so with the substitution of  Justice Allito for Sandra O' Conner.

 

He was very popular with his colleagues affording them respect and equal opportunity to write opnions.

 

JOHN ROBERTS  2005

 

It was in this mileu that Chief Justice Roberts entered the arena. In his confirmation hearings it was quite clear that he is constructionist. However, as a Chief Justice he would believe that one should act more like an "umpire' than a judicial activist. He quoted Oliver Wendell Holmes, the celebrated jurist, that where there is a close call on an Act of Congress's constitutionality, one should favor Congress. 

 

Also, as a result, particularly, of his Court's decisions on equating money as free speech and thereby opening the floodgates to election money, he recognized and stated that the Supreme Court was loosing it's credibility as an Independant Branch of Government. In polls over half the population believed that it was merely an extension of the partisan legislative divide between Democrats and Republicans. His Court was known as the Kennedy court as a result of that Justice being considered the swing vote in every 5-4 decision. A Time Cover had depicted Kennedy not Roberts as the decider in legislation.  His Court and his leadership was being marginalized.

 

Roberts also has a sense of history. Much of what the Warren and Burger Courts did is the unchallenged way of the land today - desegregation, civil liberties and the like. He was now on the cusp of two historical decisions. The legitimacy of the Arizona's far reaching immigration law and Health Care. He could still get on the right side of history, in terms of being a Constructionist.

 

One cannot see the Immigration problem with 12,000,000 illegal souls being solved the draconian Arizona way. The constitutional solution to that challenge was relatively simple. You cannot have 52  State Immigration policies and this is clearly a Federal Government activity so the harsh Arizona legislation could be struck down. Furthemore, the Court invited a challenge on the one provision ruled constitutional - the "show your papers" component. 

 

The Affordable Health Care Act was not so easy to solve in terms of his philosophy. It does not present as easy a Consitutional out as did the Arizona Immigration Laws.  However it was an Act of Congress and one could envision in a few decades that Universal Health Care will as much be part of the landscape as Medicare, Social Security, desegregation, voting rights and the like. In order to support this Act he ignored totally the Government argument for it's legitimacy - Commerce and defined the Compulsory Mandate as a tax which the Federal Government are perfectly entitled to institute.

 

THE FUTURE

 

Much depends on who the future Associate Judges will be. However, it is highly unlikely that the Court will go back into it's partisan stupor. Nor is it likely that Robert's will sit idly by and let an Associate Judge define the legacy of his Court.

Also there is no chance that Obamacare will be repealed. In the unlikely event that Romney was elected he would need 60 Senate votes to repeal it and that is not going to happen.